Allahabad High Court
Ajeet Rajbhar vs Smt. Badami Devi And Ram Chander Sahani on 21 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 64 Reserved A.F.R. Case :- FIRST APPEAL FROM ORDER No. - 70 of 2019 Appellant :- Ajeet Rajbhar Respondent :- Smt. Badami Devi And Ram Chander Sahani Counsel for Appellant :- Akhilesh Chandra Srivastava, Ramesh Chandra Pathak Counsel for Respondent :- Vijay Kumar Dubey Hon'ble J.J. Munir,J.
1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, 'the Act') is directed against a judgment and award of Mr. Rakesh Kumar, Motor Accident Claims Tribunal/ the Additional District Judge, Court No.7, Gorakhpur dated May the 31st, 2017 in Motor Accident Claim Petition No.145 of 2012, ordering the appellant to pay compensation to the claimant-respondent No.1 for a fatal motor accident.
2. The moot question involved in this appeal is: Whether the owner of a motor vehicle, who hands it over for repairs to a mechanic, would be liable in damages to a third party sustaining injury on account of use of the motor vehicle by the mechanic in a public place, for the purpose of carrying out repairs?
3. The facts giving rise to this appeal are these:
Indra Kumar Gupta @ Kumbhe was proceeding on his bicycle on 13.02.2012 to Khalilabad. As he reached near a pond, located ahead of the Beni Madhav Inter College, within the local limits of P.S. Bakhira, District Sant Kabir Nagar at about 1:00 o'clock in the afternoon hours, the rider of motorcycle, bearing registration No. UP-58D-4362, riding his motorcycle, at a high sped and negligently, appeared and without sounding a horn, hit the bicycle that Gupta was riding. In consequence of the impact, Gupta sustained grievous injuries. He was being conveyed for the purpose of medical aid to a hospital in Khalilabad, but died on way. These are the assertions in the claim petition instituted by Gupta's wife, Smt. Badami Devi. Badami Devi is the sole claimant arrayed in the claim petition and the respondent to this appeal. She will hereinafter be referred to as 'the claimant'.
4. It is the claimant's case that though the loss caused by the untimely demise of her husband cannot be compensated in money, but still she is entitled to compensation. The deceased is said to have been earning a sum of Rs.8000/- a month, which he expended on his family. The claimant also asserts that his untimely demise has deprived her of his company. Accordingly, the claimant has demanded in compensation a sum of Rs.18,21,000/-, as per details set forth in Column No.22 of the claim petition.
5. The owner of the offending motorcycle is one Ram Chandra Sahani, arrayed as opposite party No.1 to the claim petition. He is the second respondent to this appeal. He will hereinafter be called 'the owner'. The owner put in a written statement denying the averments in the claim petition generally. In the additional pleas, he has denied the accident involving his motorcycle on the date, time and place alleged. According to the owner, he had entrusted the offending motorcycle prior to the accident to one Ajeet Rajbhar for the purpose of service. Ajeet Rajbhar, without the permission of the owner, was operating the motorcycle, when he caused the accident. The owner had no knowledge of the accident until after the lapse of a week. It is the owner's case that since Ajeet Rajbhar (for short, 'the mechanic') was operating the motorcycle without the owner's consent, it is he, who has to bear the burden of satisfying the compensation awarded, in case the Tribunal is of opinion that it is the offending motorcycle that was involved in the accident.
6. The mechanic, who was arrayed as opposite party No.2 to the claim petition and is the appellant here, put in his separate written statement dated 13.04.2016. He generally denied the allegations in the claim petition. In the additional pleas, it is his case that on 03.02.2012 or at any other date, he was not riding the offending vehicle, but at the time when the accident is said to have happened, he held a valid and effective driving licence, bearing No. A294715KN/05. The said driving licence was issued to him on 07.07.2005 by the Transport Officer, Sant Kabir Nagar. No accident happened on 13.02.2012, because of the mechanic, rashly and negligently riding the offending motorcycle. The claimant merely for the purpose of seeking compensation has come up with this claim. The mechanic has denied his involvement in the accident.
7. On the pleadings of parties, the Tribunal framed the following issues (translated into English from Hindi):
"1. Whether on 13.02.2012 when the deceased Indra Kumar Gupta @ Kumbhe was cycling his way to Khalilabad and had reached the pond, a little ahead of Beni Madhav Inter College within the local limits of P.S. Bakhira, District Sant Kabir Nagar, at about 1:00 o'clock in the afternoon, motorcycle bearing registration No. UP-58D-4362, operated by its rider rashly and negligently and without sounding a horn, bumped into the deceased's motorcycle, which led him to sustain grievous injuries, of which he died while being conveyed to the hospital?
2. Whether on the date and time of the said accident, the rider of the said motorcycle, bearing registration No. UP-58D-4362, held a valid and effective driving licence?
3. Whether on the date and time of the accident, the said motorcycle No. UP-58D-4362 was insured with an Insurance Company?
4. Whether the claimant is entitled to any compensation, if yes, how much and from whom?"
8. On behalf of the claimant, the claimant herself entered the witness box as PW-1, besides examining another Krishna Kumar as PW-2. The owner too entered the witness box and testified as DW-1. Documentary evidence was filed on behalf of the claimant through three lists. The relevant of the evidence for the purpose of this appeal shall be referred to during the course of this judgment.
9. On Issue No.1, after considering the entire evidence on record, the Tribunal held that the offending motorcycle was being ridden by the mechanic at the time when the accident happened. The finding has been recorded after considering the testimony of PW-2, an eye-witness, besides that of the owner. It has also been taken note of that the mechanic was apprehended on the spot along with the motorcycle and taken to the police station. The mechanic's shop is located at a distance of 200 meters from the site of the accident. The owner has said in his examination-in-chief that he had forbidden the mechanic from riding his motorcycle in his absence or doing a trial run, but in his cross-examination the owner has said that he had not given any written instructions to the mechanic not to operate the motorcycle in his absence or to do a trial. The Tribunal has taken note of the fact that the owner had informed the Police about the mechanic causing the accident, while operating the offending motorcycle, and further that the Police in the relative criminal case have charge-sheeted the mechanic. It was, thus, held by the Tribunal that the offending motorcycle, on the date of the accident, caused it while being operated by the mechanic, and in the said accident, Gupta sustained injuries leading to his death.
10. On Issue No.2, the Tribunal has returned a finding that on the date of the accident, the mechanic held a valid and effective driving licence. So far as Issue No.3 is concerned, the finding returned is that on the date and time of the accident, the offending motorcycle was not insured.
11. The most crucial findings are those on Issue No.4. Here, apart from liquidating the quantum of compensation to which the claimant has been found entitled, the Tribunal has also decided the question as to who, amongst the owner and the mechanic, would be liable to make it good. The Tribunal has opined that since the mechanic had been forbidden from operating the vehicle by the owner in his absence, it is evident that the accident happened when the mechanic was using it for some work of his own. Therefore, the liability to make good the compensation awarded would fall on the mechanic's shoulder; not the owner's.
12. With these remarks, the Tribunal decreed the claim petition, awarding compensation in the sum of Rs.1,88,000/- with 6% interest from the date of institution of the claim petition. The liability to pay compensation was placed exclusively on the mechanic's shoulders. The owner was relieved of the liability.
13. Aggrieved, the mechanic has preferred the instant appeal, asking the liability to be shifted to the owner. It is in this context that the question set forth in the opening part of this judgment has arisen.
14. Heard Mr. Aditya Singh Parihar, Advocate holding brief of Mr. Ramesh Chandra Pathak, learned Counsel for the mechanic and Mr. Manish Kumar Pandey, Advocate holding brief of Mr. Vijay Kumar Dubey, learned Counsel for the owner. No one appears on behalf of the claimant.
15. It is argued by Mr. Aditya Singh Parihar, learned Counsel for the mechanic, limiting his submissions to a criticism of that part of the Tribunal's findings on Issue No.4, where it has been held as to who would be liable to pay the compensation awarded, that the Tribunal has gone utterly wrong in holding that the mechanic is liable. It is argued with much emphasis that the Tribunal has failed to consider that at the time when the accident happened, the mechanic was test-driving the offending motorcycle, which was part of the contract of bailment, that is to say, service of the offending motorcycle, under which he had custody of it given by the owner. It is also argued that the remark of the Tribunal that the mechanic was operating the offending motorcycle for his own use is bereft of any evidence. It is argued that the fact that the accident took place at a site, located around 200 meters from the mechanic's shop, fortifies circumstantially, the mechanic's stand that he was test-driving the offending motorcycle. Mr. Aditya Singh Parihar has then submitted that the liability to make good the compensation under the Act would be that of the registered owner of the offending motorcycle. In support of his contentions, he has placed reliance upon the decision of the Supreme Court in Naveen Kumar v. Vijay Kumar and others, (2018) 3 SCC 1, where it has been held:
"13. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression "owner" in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the "owner". However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the Registering Authority as the owner of the vehicle, he would not stand absolved of liability. Parliament has consciously introduced the definition of the expression "owner" in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier 1939 Act. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the Registering Authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the first respondent was the "owner" of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma [HDFC Bank Ltd. v. Reshma, (2015) 3 SCC 679 : (2015) 2 SCC (Civ) 379 : (2015) 2 SCC (Cri) 408] and Purnya Kala Devi [Purnya Kala Devi v. State of Assam, (2014) 14 SCC 142 : (2015) 1 SCC (Civ) 251 : (2015) 1 SCC (Cri) 304].
14. The submission of the petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle. In T.V. Jose [T.V. Jose v. Chacko P.M., (2001) 8 SCC 748 : 2002 SCC (Cri) 94] , this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the Registering Authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled."
16. Mr. Manish Kumar Pandey, learned Counsel appearing for the owner, on the other hand, submits that the owner entered the witness box as DW-1 and has specifically said in his testimony that he had not prohibited the mechanic to drive the offending motorcycle after repairs in writing, but had verbally instructed him not to use the motorcycle in his absence. It is argued that the mechanic has not taken a plea in the written statement that he was test-driving the offending motorcycle after repairs. Rather, he has said that he never caused the accident, a fact which has been established to be incorrect. It is not clear, according to Mr. Pandey, that the mechanic was driving the offending motorcycle after repairing it or before he had carried out the repairs. It is also not clear if indeed he was using it for his own purpose. It is emphatically submitted that the plea that the mechanic was test-driving the motorcycle has not been raised before the Tribunal specifically and, therefore, cannot be canvassed before this Court for the first time. If the said plea were to be accepted, it would be based on mere conjecture, without any pleading or material.
17. It is submitted by the learned Counsel for the owner that the mechanic has not entered the witness box and testified before the Tribunal. He has not produced any witnesses either to contradict the owner's stand. It is urged that the since the mechanic has not rebutted the owner's case in his pleading or in the witness-box in any manner, the owner's testimony remains unrebutted. It is on the aforesaid premise of pleadings and evidence that the Tribunal has rightfully held that the mechanic was riding the offending motorcycle on the date and time of the accident without the owner's permission. He submits that the owner under the circumstances cannot be held vicariously liable for the mechanic's tort in causing death of the claimant's husband.
18. The learned Counsel for the owner has placed reliance upon the decision of the Supreme Court in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697; Minu B. Mehta and another v. Balkrishna Ramchandra Nayan and another, (1977) 2 SCC 441; and, Pushpabai Purshottam Udeshi and others v. Ranjit Ginning & Pressing Co. (P) Ltd. and another, (1977) 2 SCC 745. It is urged on the foot of these authorities by Mr. Manish Kumar Pandey that the master would be vicariously liable for the accident or negligence of his servant or driver, if the driver is acting or driving the vehicle in the course of employment of his master, and for the purpose of some work of his master's. But, the master would not be liable if the servant or driver at the time of the accident, is not acting or driving during course of employment, but doing something for himself. Here, it is submitted that on the evidence, there is nothing to show that the mechanic was riding the motorcycle for a purpose of the owner's. It was, thus, in operation of the vehicle beyond the limited scope of his authority, and, in fact contrary to the instructions of the owners that the accident occurred.
19. It is next submitted that the ratio of the decision in Naveen Kumar (supra), that has been relied upon by Mr. Aditya Singh Parihar to say that it is always the registered owner of the offending motorcycle, who would be liable, is a principle laid down in a completely different context. He submits that the principle has been laid down in the context of transfer of a vehicle with delivery of possession to the transferee, where the transfer is not recorded under the Act. It is in those cases that it has been laid down that notwithstanding the purchaser of the vehicle, who has not yet become its registered owner causing an accident, the liability to make good the compensation awarded would still be of the registered owner; not the unregistered transferee.
20. This Court has keenly considered the submissions advanced on both sides and perused the record.
21. The evidence in this case shows that there is no cavil between parties that the offending motorcycle was entrusted by the owner to the mechanic for the purpose of carrying out routine maintenance service. Somewhere, it has been suggested as repairs too. That is not very clear, but would not make much difference because routine maintenance service of every motor vehicle may always involve some repair job. The parties are sharply at issue on the evidence adduced about the fact, if the owner had forbidden the mechanic from operating or riding the offending motorcycle in his absence. In his examination-in-chief, the owner has taken a stand that he forbade the mechanic from operating it in his absence. But, in his cross-examination, the owner has conceded that he did not forbid the mechanic from doing so in writing.
22. It must be said that it is necessary to answer the question involved in this case as to what is the nature of relationship under the law between the owner of a motor vehicle, who entrusts it to a mechanic for service or repair. Is it that of a master and servant, a principal and agent or a bailor and bailee?
23. There are decisions, which have regarded the relationship between the owner of a motor vehicle and a mechanic entrusted for repairs etc. as that of a master and servant or principal and agent, and some that have considered it to be of a bailor and bailee.
24. In our opinion, these decisions must be referred to in order to find out, if at all a mechanic entrusted with the repairs of a motor vehicle, can be regarded as standing in the relationship of a servant to the master, who is the owner. If by any means that were the correct position of the law, the entire body of the law regarding the vicarious liability of master for the act of his servant, vis-a-vis third parties might apply to the owner, provided the servant was acting in the course of his employment and in accordance with the directions of the master. In that event, in the present case, the instructions issued by the owner to the mechanic that he has shown in his evidence to be one forbidding the mechanic from riding his motorcycle in his absence, would be very relevant. By contrast, if the mechanic is indeed a bailee, he would be an independent contractor, not holding the vehicle subject to directions of the owner. He would, of course, have his duties as a bailee to safeguard the interest of the bailor ex contractu.
25. Under the law of torts a bailee, as would be presently shown, is answerable to third parties for his tortious act while holding the goods or a chattel under bailment, which here is the motor vehicle. The position under the principles governing torts might, however, be slightly different even in the context of a bailee, holding a motor vehicle under bailment because of the provisions of the Act. Nevertheless, it has to be determined whether a mechanic holds the vehicle on behalf of the owner for repairs as his servant or agent or as a bailee; and if he does in fact hold it as a bailee, would the owner be answerable for his tortious acts vis-a-vis third parties under the tort principles, or the statute, that is to say, the Act make the owner liable for the bailee's acts vis-a-vis third parties.
26. K. Anandan v. Ammalu Gomathi and another, AIR 1988 Ker 117 was a case where the owner, who had entrusted his scooter for repairs to a mechanic and who injured a third party by his negligence, was held liable for the mechanic's tort on the principle of master and servant. In K. Anandan (supra), it was held:
"4. It is the case of the first respondent that he entrusted the scooter to the workshop for repairs and never authorised the second respondent to use it on the road and hence he cannot be made liable for the compensation claimed by the applicant. The question that has to be considered is as to whether the first respondent can be absolved of his liability on the score that the second respondent was not an employee under him. Even according to the first respondent, the vehicle was entrusted to the workshop and the accident occurred while the second respondent took the vehicle on the road for test after repairs.
Thus it can be seen that the owner of the Vehicle (first respondent) had entrusted the vehicle to the workshop and the second respondent, a mechanic of the workshop used the vehicle on the road and it was then that the accident occurred. Counsel for the applicant submitted that as the accident occurred when the second respondent used the vehicle on the road for test after repairs the first respondent cannot disclaim his tortious liability. There is no evidence that the first respondent instructed the workshop owner not to allow the driving of the vehicle for test after the repairs.
5. When a vehicle is entrusted to a workshop for repairs it is only reasonable to infer permission to take it for test driving as part of the work. It is for the first respondent to prove that the act of driving of the vehicle by the employee of the workshop owner was in excess of his authority. It is settled law that the burden is on the owner of the vehicle to prove that he did not authorise the person concerned to drive the vehicle. It is useful to refer to the decision reported in Sitaram v. Santanuprasad, AIR 1966 SC 1697 where it is held as follows:
"A master is vicariously liable for the acts of his servant acting in the course of his employment. Unless the act is done in the course of employment, the servant's act does not make the employer liable. In other words, for the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But it is equally well settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met."
As the second respondent used the scooter on the road the presumption unless rebutted is to the effect that he used it with the authority of the first respondent. As the vehicle was entrusted for repairs to the workshop there was every likelihood of it to have been tested after repairs. Such a possibility cannot be ruled out. It is not possible to hold that the second respondent used the vehicle on the road for a purpose other than testing after repairs. If there is evidence to the contrary first respondent cannot at all be held liable. As there is always a presumption that the machanic drove the vehicle on master's business with due authorization it is futile to contend that the first respondent cannot be saddled with vicarious liability.
6. 1978 Acc CJ 53 (Punj and Har), (Tara Singh v. Mangala Singh) is a case where the vehicle was given for repairs by the owner. An unlicenced worker drove the truck and caused accident. It was held in that decision that as the vehicle was driven by the worker of the workshop it should be deemed to have been driven in the course of employment. In Gopalakrishnan Embrantdiri v. Krishnankutty, 1966 Acc CJ 262 this Court had occasion to consider a case where a vehicle given for repairs was driven by the mechanic and caused accident. In that decision it was held that the act of driving the vehicle was incidental to his job and as it was within the scope of his employment the employer had to answer for its consequences. Savitri Kumari Das v. State of Orissa, 1976 Acc CJ 341 is also a similar case, where the vehicle was given for repairs and the accident occurred when the mechanic took the vehicle for a test drive. As he drove the vehicle in a rash and negligent manner and knocked down a person, the owner was held vicariously liable. As it was necessary to have a test drive after the repair of the vehicle and as this was done for the owner's benefit the liability of the owner can never be a matter in dispute. In Pritam Kaur v. Dal Singh, 1977 Acc CJ 326 (Punj and Har) it has been held as follows:
"It is settled law that if a person is found to be driving the vehicle he shall be presumed to be so doing with the lawful authority of its owner and if the owner alleges that he had not authorised that person for driving of his vehicle then the onus is on him."
As the first respondent does not have a specific case that the vehicle was unauthorisedly used by the second respondent he cannot be heard to say that he is not in any way liable for the claim. As the onus is upon the first respondent to establish that he did not authorise the second respondent to drive the vehicle and as that onus has not been discharged it is futile to contend that liability has been wrongly fastened upon him by the Tribunal.
7. Thus the settled legal position is that there is a presumption that the vehicle is driven on the master's business. Of course it could be repelled by adducing evidence. So long as that has not been done the presumption cannot be brushed aside. In (1977) 3 SCR 372 : (AIR 1977 SC 1735), (Pushpabai v. Ranjit Ginning Co.) it is stated as follows (at p. 1744 of AIR):
"Before we conclude, we would like to point out that the recent trend in law is to make the master liable for acts which do not strictly fall within the term "in the course of the employment" as ordinarily understood. We have referred to Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhat, (AIR 1966 SC 1697) where this Court accepted the law laid down by Lord Denning in Ormrod v. Crosville Motor Services Ltd., (1953 (2) All ER 753) that the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes. This extension has been accepted by this Court".
The indubitable positon is that the owner is liable for the negligence of his driver not only if he acted in the course of his employment but also if he drove the vehicle with his tacit or implied consent for his business or other purposes."
(emphasis by Court)
27. In Ramu Tolaram v. Amichand Hansraj Gupta and others, AIR 1988 Bom 304, the issue arose in the context of a motor vehicle handed over to a garage for repairs. After the repairs were over and the car was parked in the garage with the keys being handed over to an independent auto electrician, who worked for the garage and resided there. Some unknown person drove the car out and hit four persons, one of whom died. The question was whether the owners of the garage, who were three partners, or the owner of the motor vehicle could be held vicariously liable for the injuries caused to third parties. In the context of the aforesaid facts, it was held in Ramu Tolaram (supra):
"Mr. Mhamane may be right on this point. But what the learned Advocate has lost sight of is that even assuming that the Company was not liable for the negligence of respondents Nos. 2 to 4, actual or vicarious, it would be answerable for the liability of respondent No. 1, the owner of the car, and it is here that the Court must pause to consider as to whether respondent No. 1 was not liable vicariously for the acts of omission of respondents Nos. 2 to 4. It may be that respondent No. 1 will not be liable vicariously for the loss caused by the un-identified driver, because respondent No. 1 was not having the control of the car at that time, the control having been transferred by respondent No. 1 lawfully to respondents Nos. 2 to 4. When the car is given by the owner of the vehicle to the garage for repairs, the control of the car certainly stands transferred to the owner of the garage. But the point is that in such a case the owner of the garage is constituted by the owner of the car as his agent. Everything done or omitted to be done by the agent will be something for which the principal will be vicariously liable. It is the principal's liability' for the acts done or omitted to be done by the agent. I gave an illustration to Mr. Mhamane. The owner of the garage makes various purchases for the purpose of the repairs of the car. The owner of the car has to pay for those purchases. This could be so only because the owner of the garage is the agent of the owner of the car and the purchases made by the former are as the agent of the latter. If the doctrine of agency extends to this situation, there is no reason why it should not extend to other situation where the car is allowed by the agent to go out of the garage berserk. The liability of the agent will have to be vicariously fastened even upon the principal in such a case.
(iv) Mr. Mhamane relied upon the judgment of a learned Single Judge of this Court reported in 1984, Maharashtra LJ, page 456 (V.J. Acharya v. Ratilal Fulchand Shah) firstly in support of the proposition that the owner of the garage is certainly liable for the damage caused to any person by the car while the same is in the custody of the owner of the garage and secondly in support of his contention that the owner of the vehicle can in no case, be liable for the acts or omissions of the owner of the garage once the control of the car is transferred by the owner of the car to the owner of the garage.
The facts of the case were as follows:--
A Car got stalled up on the road and hence the car owner went to the garage and told the owner about the complaint. Hearing the nature of the complaint the garage owner asked his mechanic to accompany the car owner to the place where the car was parked. The mechanic had no driving license. But all the same, he drove the car to the garage and that too negligently, thus knocking down the claimant. The Tribunal awarded damages both against the owner of the garage as also the owner of the vehicle. A learned Single Judge of this Court held that whether the mechanic was authorised by the owner to drive the car or not, the vicarious liability for the negligence on the part of his employees was complete. However, the Court further held that the mechanic was not the agent of the owner of the Car. It was, therefore, held that the penalty for the negligence on the part of the mechanic could not be visited upon the car owner.
(v) So far as the 1st proposition is concerned, I am in full agreement with the same. But so far as the present case is concerned, the state of record is even more seakes out the car for the owner. Quite often he also drives the car out for the sake of the owner. Kisanlal was not an ordinary aing license. In the instant case, the evidence of the 2nd respondent that Kisanlal had no authority to drive the car is just incredible and, further, in view of the fact that the 2nd respondent has kept a very eloquent mum about the identity of the person driving the car at the particular time reflects upon his evidence in this behalf.
But the above judgment is no authority for the question as to whether the owner of the garage was the agent of the owner of the car or not. The perusal of the judgment shows that what was argued before the Court was as to whether the mechanic having no license to drive the car and who all the same drove the car negligently was the agent of the owner of the car or not. With respect, I am in full agreement with the view taken by the learned Single Judge that the mechanic driver could not be considered to be the agent of the owner as such directly. But the point is that when the car is given by the car owner to the owner of the garage for repairs, the owner of the garage is constituted an agent of the owner of the car for various purposes and while doing that work the owner of the garage is required to drive the car in and out of the garage, either himself or through his own agent. No doubt such owner of the garage is an independent contractor. But even an independent contractor is an agent of the principal by whom the contract is entrusted. I may mention here that this aspect of the vicarious liability of the owner of the car was not urged before this Court when the appeal was decided by this Court. What was urged was that the mechanic was directly the agent of the car owner, not that the owner of the garage was the agent of the car owner. In the present case, I have held that the owner of the garage is liable for the negligence of the driver in question. Once we go a step further and hold that the owner of the garage was the agent of the owner of the car, the principal viz. the owner of the car, must be held exposed to the vicarious liability. Since this point was not even urged before this Court and since this Court had no occasion to consider this aspect of the question in the judgment reported in 1984 MLJ page 456, that judgment cannot be relied upon by Mr. Mhamane as an authority on the question as to whether the garage owner was the agent of the car owner or not....."
28. In Ramu Tolaram, the Court held the owner liable by constituting the garage owners his agents. The doctrine of agency was invoked, making the principal liable for the act of the agent in discharge of the principal's assignment.
29. Thus, whereas in K. Anandan, it has been held that a mechanic entrusted with a car by the owner for its repair, stands in the relationship of the owner's servant, in Ramu Tolaram the owner of a garage entrusted by the owner of a car for its repair has been held to be his agent.
30. This Court must notice the three decisions, relied upon by the learned Counsel for the mechanic to assert that the owner and the mechanic stand in the relationship of the master and servant, so as to render the master liable to third parties in compensation for injuries sustained on account of acts done by the mechanic, during the course of employment. The decision of the Supreme Court in Sitaram Motilal Kalal (supra), relied on behalf of the owner, is an exposition of the law in the context of the vicarious liability of the owner for acts done by a servant, during the course of employment and about the effect on that liability, if the servant were to act without the course of employment, where he causes injury to third parties. There are also remarks in the said decision about liability of the principal, if the agent injures a third party while acting for the principal, but beyond the scope of his agency. The question in that case also had arisen in the context of use of a motor vehicle. The two other decisions are likewise, ones rendered in the context of the vicarious liability of the master for the tortious acts of his servant, vis-a-vis third parties.
31. None of these decisions were rendered in the context of the tortious acts of a mechanic or a garage owner, who held the motor vehicle for repairs on the owner's behalf and caused an accident during that period. It is for this reason that the said decisions, though laying down principles of profound guidance vis-a-vis the liability of the master for the acts of his servant, may not be of much relevance on the point whether a mechanic stands in the position of a servant or agent of the vehicle owner, when entrusted with custody of the vehicle for repairs.
32. Here, the point that arises may be similar or draw some analogy from the law that applies to masters and servants, principals and agents, but the relationship between the owner and a mechanic is different. The entrustment by the owner of his vehicle to the mechanic is what is known to the law of contract as bailment. The owner is the bailor and the mechanic, the bailee. What is the scope of the authority of the bailee while handling bailed goods or movables entrusted to him, has been the subject matter of judicial exposition. Bailment is defined under Section 148 of the Indian Contract Act. Section 148 reads:
"148. A "bailment" is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the "bailor". The person to whom they are delivered is called, the "bailee".
Explanation.--If a person already in possession of the goods of another contracts to hold them as a bailee, he thereby becomes the bailee, and the owner becomes the bailor of such goods, although they may not have been delivered by way of bailment."
33. A mechanic, to whom a motor vehicle of any kind is delivered for service or repairs, certainly holds it as bailee, because the essentials of bailment are all present. The mechanic is entrusted the custody of the motor vehicle for the purpose of carrying out repairs etc. When the said purpose is accomplished, the mechanic is under an obligation to return the motor vehicle to the owner, the purpose of delivery thereof to the mechanic being accomplished.
34. In the context of a motor vehicle, the rights of a mechanic as a bailee thereof and how a tort committed by him, if he uses the motor vehicle held on bailment, vis-a-vis a third party would make the owner liable to the wronged third party, was the subject matter of consideration before a Division Bench of Kerala High Court in The Motor and General Finance (India) Ltd. v. Mary Mony and Other, 1990 SCC OnLine Ker 229. In Mary Mony (supra), what had happened was that, a bus used as a stage carriage was handed over for repairs by its owner to the Motor and General Finance (India) Ltd., who were engaged in the business of repair and service of motor vehicles. The vehicle was in the appellant's garage for servicing, that was still being carried out by workers engaged by the appellant. The claimant's husband, who was the owner of the bus, was also in the garage. One of the workers, who took the driver's seat, started the engine, leading the bus to reverse and hit a compound wall of the garage. This led the claimant's husband to be crushed between the bus and the garage wall. He was seriously injured and rushed to medical aid. A surgery was performed, but the operation was unsuccessful. The claimant's husband succumbed to his injuries. In this case, the bailee was the Motor and General Finance (India) Ltd., the appellant before the Kerala High Court and the tort was committed by one of their servants, vis-a-vis the bailor himself, while the motor vehicle was held by them for service and repairs under a contract of bailment. The principles that have been laid down in the decision is with regard to the bailee's liability to third parties arising out of the use of the bailed goods by the bailee himself, or one of his servants while executing the bailment, notwithstanding the fact that the third party was in fact the owner. It seems from a reading of the decision that the motor vehicle being in the possession of the bailee under the contract of bailment, the injury sustained by the owner was dealt with as an injury to a third party regarding the bailee as the owner for that limited period of time.
35. Expositing the law regarding the liability of the bailee of the bailed goods, that it to say, the vehicle there to a injured third party or his heirs, Varghese Kalliath, J. speaking for the Bench, extensively reviewed the law on the subject, observing:
"9. Admittedly, the vehicle was in the custody of the appellant and that custody was that of a bailee. Section 148 of the Indian Contract Act defines bailment. Bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the bailor. The person to whom they are delivered called the bailee. The obligation and responsibility of a bailee are delineated in section 151 of the Indian Contract Act and it postulates that in all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take, of his-own goods of the same bulk, quality and value as the goods bailed. All the intents and purposes as long as the contract of bailment continues, there is nothing wrong in deeming the bailee as the owner of the goods bailed. We will consider the effect of a motor accident casted by the employee of the bailee in greater detail later, after considering the question whether the legal representatives of the deceased are entitled to maintain an action against the appellant herein for compensation under the Act.
26. We have said that the liability to pay compensation is a liability under the general law of torts. We have already determined in paragraph 10 the status of the appellant in this case as that of a bailee; What happened is clear. An employee of the bailee caused the accident by his negligence. Allowing the employee to sit in the driver's seat also is an act of imprudence and negligence on the part of the appellant. If the accident has occurred in the same way as it has occurred in this case, and if the victim is not the owner of the vehicle, but a stander, it will be difficult for the bailee to say that he is not liable for compensation. Perhaps, that stranger victim may have a cause of action against the owner of the vehicle also. If circumstances are brought out to fasten liability on the owner of the vehicle or in case the owner fails to get himself extricated from the liability on the basis of exceptions that can be claimed when the accident has occurred on account of the negligence of the bailee both the owner and bailee may be liable to pay compensation to the injured or the legal representatives of the deceased. Anyhow, in general law it is not difficult to find liability for the negligence of the person who was on the driver's seat. There is no dispute that the person, who was on the driver's seat, was solely responsible for the accident and that he was the employee of the appellant. We have no hesitation to hold that the person who actually caused the accident by his negligence has no-defence to escape liability to pay compensation. He is bound to account for his negligence. If the person who is primarily bound to account for the negligence is the employee of the appellant, the appellant is also vicariously liable to account for the negligence of his employee.
27. There are decisions to the effect which would show that the bailee's sole interest is essentially possessory and it is demonstrated by his ability to recover for injury to the goods without proof of--personal loss against a stranger and is consistent with the principles of bailment generally. A right to immediate possession is better characterised as generating a constructive rather than an actual possession.
28. In Mangan v. Leary (1877) 3 N.Z. Jur. (N.S.) C.A. 10 at 16 per Gillies, J. said:
"Until I heard Mr. Macassey's able and ingenious argument, it never 4 Occurred to me to doubt that the law is that either bailee or bailor may sue a wrongdoer for the entire damage done to the chattel bailed. And after careful consideration of the argument and examination of the authorities, I adhere to my previous opinion".
29. There is no dispute that a bailee's possession is a prerequisite or to which it is one of several grounds of potential qualification. His lack of full ownership does not preclude him, from recovering, the full value of the chattel or the full cost of its impairment; the rule in such circumstances is that "as against a wrongdoer, possession is title". (Vide The Winkfield, (1902) P. 42 at 60 and Bailment by Palmer (1979) Edn. Page 177.
30. Palmer in his Book ''Bailment' says that "it was only in the present century that the bailee's rights of action against a wrongdoer were finally established. Although decisions granting him an action in trover for the full value of the goods can be traced from the beginning of the 19th century, it was at first unclear whether his use of this or any remedy was conditional upon his liability to the bailor; if it were not, he would stand to recover more than he had lost, while the wrongdoer would be forfeiting more than the extent of his immediate damage".
31. We have considered now only the bailee's right to recover damages from a wrongdoer in regard to the goods bailed. But, the question that has to be focused is the liability of bailee to third parties. Again we rely in Bailment by Palmer at page 966. Referring to decided cases, the learned author has epitomised the rule thus:--
"The bailee's responsibility for injury or loss inflicted upon a stranger to the bailment by the chattel is a simple facet of the ordinary law of negligence or trespass and does not necessitate exhaustive discussion. He will be liable if, through the negligent misuse of the chattel by himself or his servants acting in the course of their employment, a third party is forceeably injured or property is forceeably damaged".
32. We feel that the appellant whose status is that of a bailee, in the circumstances, is accountable for the negligence of his employee. So, necessarily, we have to hold that the appellant is liable to pay compensation to the claimants."
36. This decision does not go beyond determining the liability of the bailee for the injuries caused to third parties while a chattel, like a motor vehicle, is in his possession for doing some work in relation to it. It holds the bailee liable to third parties for any injury arising out of the use of a motor vehicle given in possession of the bailee for doing of some job on it. The decision, however, does not logically deal with the liability of the owner of the bailed goods or chattel, that is to say, the motor vehicle, because of the very peculiar facts of the case there, where the owner of the motor vehicle, while it was under the control and possession of the bailee himself, became the victim of negligence by the bailee's servant. The question of the owner's liability, therefore, would not have arisen. The owner after all was the injured third party.
37. The issue about the liability of the owner of a motor vehicle to third parties for injuries sustained when the motor vehicle was entrusted for repairs to a mechanic or a garage, was considered by a Division Bench of the Punjab and Haryana High Court in Devinder Singh Brar v. Mangal Singh and others, AIR 1981 P&H 53. The facts in Devinder Singh (supra) can best be recapitulated in the words of their Lordships:
"2. On February 23, 1968, at about mid-day Mangal Singh, injured respondent, whist going on his bicycle, within the town of Moga collided with truck No. PNF-8078 and suffered serious injuries on his person. He was immediately removed to the Civil Hospital, Moga, where the medical witness found that apart from other injuries, the whole of the outer side of the right leg and the right thigh were abraded and contused and bones of the right thigh and right ankle were fractured. A case was also registered against the driver of the vehicle at Police Station, Moga. Mangal Singh was later removed to the Post Graduate Institute at Chandigarh for better treatment for the compound fracture of the lower and right femur and compound fracture of right medial malleolus. He was discharged from the hospital partially cured.
3. Mangal Singh, respondent, preferred an application for compensation for a sum of Rs. 60,000 for injuries and loss of his earnings due to the disability caused thereby.
4. In contesting the claim application, the appellant, Devinder Singh Brar, pleaded that he had completely entrusted his truck for repairs to the Behon Workshop at Moga, which apparently was the proprietary concern of Jarnail Singh, respondent. It was his express stand that he had never authorised its driving on the road either by the said Jarnail Singh or anyone of his employees. He further took up the plea that the truck at the time of the accident was being driven at a low speed and in any case the accident was caused by the contributary negligence of Mangal Singh, respondent, who suddenly swerved his bicycle towards one side."
38. In answering the point that arose for consideration, it was held by their Lordships of the Division Bench:
"14. Mr. G.R. Majithia, learned counsel for the appellant-owner, has respectfully assailed the aforesaid view on the ground that herein no question of any relationship of master and servant betwixt the appellant and Tara Singh arises. As a natural corollary, therefore, it was argued that no issue of any actual or deemed driving of the vehicle in the course of employment of the appellant would be attracted. The core of the submission on behalf of the appellant is that the appellant-owner had entrusted his vehicle for repairs to an independent contractor and was, therefore, in no way responsible for the fault, if any, of the later.
15. On the aforesaid contention, the issue that arises at the very threshold is whether Jarnail Singh, respondent, who is the proprietor of Behon workshop at Moga and to whom admittedly the vehicle was entrusted for repairs, was an agent or employee of the owner or merely an independent contractor, unfettered by any control or direction of the appellant. It appears to me that the answer is plain. Judged by any test, the relationship betwixt the owner of the truck and the proprietor of the workshop, to whom it is entrusted for repairs, cannot be that of a master and servant. It is wellsettled that an independent contractor is one who undertakes to produce a given result or performs a particular work, but in the actual execution of that work he is not under the order or control of the person for whom the work is done and he is at liberty to use his own discretion and judgment. Applying this test, it would appear that the appellant could not possibly direct and control the manner in which the repair was to be done of his vehicle. Speaking generally also, it does not appear to be possible to hold that proprietors of automobile workshops stand in the relationship of master and servant in regard to the owners of cars or lorries entrusted to them for repairs.
16. Once it is held that Jarnail Singh, respondent, was an indepent contractor, then it would inevitably follow that the appellant cannot be vicariously saddled with the responsibility for his acts or for the unauthorised use of the vehicle while in his custody by a stranger or an employee of the independent contractor. It is significant that the factual finding herein is that it was not the independent contractor who at the material time was driving the truck but a differtnt person, namely, Tara Singh, respondent, who cannot even remotely be deemed to have been authorised by the owner of the vehicle to drive the same.
17. I am not oblivious of the fact that the settled rule that an employer is not liable for the negligence of an independent contractor has some well recognised exception. However, the present case of the entrustment of a motor vehicle to a workshop owner cannot possibly be brought within the ambit of any such exceptions. The absolute rule of Ryland v. Fletcher cannot possibly be attracted to the case of an ordinary work-a-day chattel like a motor vehicle. Whenever may have been the position of the law a century earlier, it cannot today be held that a motor vehicle is so inherently dangerous and hazardous that even its entrustment to another for repairs would attract the absolute rule of liability at the owner's own peril. On the other hand, there appears to be ample authority for the view that a motor vehicle in itself 1st not a nuisance or a hazardous chattel so as to attract the doctrine of Ryland v. Fletcher.
18. The view I am inclined to take seems to have the substantial, if not conclusive, support of the Division Bench Judgment of the Madras High Court in B. Govindarajulu Cheety v. M.L.A. Govindaraja Mudaliar [1966 A.C.J. 153.] . Therein, an exhaustive examination of case law on the point has been made and it would be evidently wasteful to traverse the same ground over again. It suffices to notice that the learned Judges in B. Govindarajuly Chetty's case (supra) had concluded as follows:
"From this decision it is solutely clear that in the case of a motor vehicle liability can be fastened as against a person only on proof that he was negligent and that that negligence was responsible for the accident in question. It is impossible to hold that the first respondent owed any duty or could have exercised any control or taken any precaution about the lorry once it had been entrusted to the workshop for the repairs. We have no doubt there is no law which throws a duty upon the owner to speculate and anticipate that some, unauthorised person would take the lorry out from the garage of the repairer. It is not one of the necessary natural consequences that would be expected to arise in the matter of entrustment of a lorry for repair."
39. The question again arose in a slightly different context, but certainly in the context of the use of a motor vehicle by a bailee holding it for repairs before the Supreme Court in Guru Govekar v. Filomena F. Lobo Miss, (1988) 3 SCC 1. The question that arose in that case may best be left to the words of their Lordships in the opening part of the report. It reads:
"whether an insurer who has issued a policy insuring any person specified in the policy against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of a motor vehicle in a public place, is liable to pay compensation to such third party or to his or her legal representatives as the case may be when the liability arises when the motor vehicle is in the custody of a repairer."
40. In Guru Govekar (supra), the question was answered by their Lordships thus:
"12. We agree with the view expressed in Monk v. Warbey [(1935) 1 KB 75] . In India the opinion appears to be divided on the liability of the insurer of a motor vehicle when the accident giving rise to the claim takes place when the motor vehicle is in the custody of a repairer. In Vijayanagaram Narasimha Rao v. Ghanashyam Das Tapadia [(1986) 2 ACJ 850] Ramaswamy, J. of the High Court of Andhra Pradesh held that once the owner had entrusted the motor vehicle to the licensed mechanic to effect repairs, testing being integral part of effecting repairs and the accident had taken place during the course of testing the vehicle, the necessary conclusion was that the mechanic acted within his limits of authority and in the course of the employment for and on behalf of the owner. Therefore, the owner should be vicariously liable for the acts of the mechanic. Accordingly, he held that both the owner and the insurance company were also jointly and severally liable for the payment of the compensation to the third party, who had suffered the injury by virtue of the provisions of the Act. The decision of the High Court of Madhya Pradesh in Shantibai v. Principal, Govindram Sakseria Technological Institute, Indore [1972 ACJ 354] is also to the same effect. G.L. Oza, J., as he then was, in the course of the said decision rejected the contention of the insurance company based on the exemption clause which exempted the insurance company from liability arising out of an accident during the period when the motor vehicle was used "for hire or used for organised racing, pace-making, reliability speed testing", which was also one of the contentions urged before us in the present case although the said contention could not be urged in the circumstances of this case. We do not agree with the decision in D. Rajapathi v. University of Madurai [1980 ACJ 113] in which it has been held that the doctrine of vicarious liability could not be extended to a case where the accident had taken place on account of the negligence of the driver employed by an independent contractor even when the claim is made not under the Law of Torts but under the provisions of the Act. While it may be true, as we have observed earlier, that under the Law of Torts, the owner may not be liable on the principle of vicarious liability, the insurer would be liable to pay the compensation by virtue of provisions of Section 94 and Section 95 of the Act, referred to above."
41. It has to be borne in mind that the Act has amongst many of its objects relating to the overall regulation of motor vehicles, the social welfare object, that is about the provision of compensation to the victim of a motor accident, effectively through a summary remedy provided before a special forum, that is the Tribunal. The persons, against whom an award may be passed by the Tribunal, are specified in Section 168 of the Act, that speaks about the award of the claims Tribunal. It reads:
"168. Award of the Claims Tribunal.--(1) On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 163 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:
(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
(emphasis by Court)
42. A perusal of the aforesaid provision shows that the Tribunal may pass an award directing compensation, which appears to be just and mandates that the Tribunal shall specify the amount of compensation payable by the Insurer, the owner or the driver. It is, thus, clear that the exclusive remedy, which is summary in nature, is provided to the victim of a Motor Accident before the Tribunal investing the Tribunal to pass an award holding the Insurer, the owner or the driver liable. The Tribunal has been empowered to direct, which of them and in what proportion shall be liable under the award and the award may be passed against any or all of them.
43. It would be necessary to notice one submission advanced by the learned Counsel for the mechanic that most of the decisions relied upon on behalf of the owner are those rendered in the context of the Act of 1939, whereas the present issue has arisen in the context of the Act, which is a successor statute and very different from its predecessor, including the provisions relating to rights and liabilities of the Insurance Company. Suffice it to say that the provisions of Sections 94 and 95 of the Act of 1939 are broadly pari materia to the provisions of Sections 146 and 147 of the Act though there are important distinctions of detail on certain issues. But, those distinctions in the provisions of Sections 94 and 95 of the Act of 1939 and the corresponding provisions in the present statute have little bearing on the issue involved here.
44. The decisions rendered under the Act of 1939 on the question involved in the present appeal cannot be said to be irrelevant and away from the contemporary statutory context. Broadly, the provisions of Sections 94 and 95 of the Act of 1939 and those of Sections 146 and 147 of the Act make it imperative that any person, who uses or causes to be used a motor vehicle in a public place, shall not do so unless there is in force an insurance policy in relation to that vehicle complying with the requirements of the relative statute. What the policy must ensure, is also spelt out by corresponding provisions under both the statutes and make it imperative for the policy to cover third party risk, involving either death of a person or grievous hurt.
45. The decision in Guru Govekar for the last part of the principle holding the Insurer liable by virtue of Section 95 of the Act of 1939 was followed by a Division Bench of the Kerala High Court in Alias v. E. M. Paul and others, AIR 2004 Ker 214, and still earlier, by a Single Judge of the Madras High Court in Eagle Brand Soapnut Co. represented by its Partner No. 15, Peria Kammala Street, Tiruchirapalli-8 v. Rangasamy and another, 1997 SCC OnLine Mad 67. These decisions, in fact, were about the liability of the Insurance Company to indemnify when the motor vehicle was in the custody of a mechanic or a repairer. These decisions are not about the issue whether for the act of a bailee in injuring a third party while holding custody of a chattel under a contract of bailment would render the bailor/ owner liable in damages to the third party. These authorities are not about the liability that arises under the torts, but one that arises under the Act for the Insurer when a motor vehicle in the custody of a bailee causes injury to a third party.
46. The decision in Guru Govekar makes it clear that under the general principles governing torts, the owner is not liable for the act of an independent contractor, like a bailee, vis-a-vis third parties while holding his chattel under a contract of bailment. In that situation, it is the bailee alone who is answerable to the injured third party, again so far as principles governing torts are concerned. But, the decision in Guru Govekar, which has thereafter been followed by the Kerala High Court and the Madras High Court, has drawn upon the provisions of Sections 94 and 95 of the Act of 1939 to hold the Insurance Company liable under a statutory liability, where a duly insured motor vehicle entrusted for repairs to an independent contractor, a bailee, like a mechanic, causes injuries to a third parties while operating it.
47. It is true that the Act of 1939 has since been replaced by the present statute, that is to say, the Act, but as said earlier, the salient features of the rights and liabilities between the owner, the insurer and third parties, remain unchanged under the Act, which has corresponding provisions in Sections 146 and 147.
48. The liability of the Insurance Company arises, therefore, under Sections 146 and 147 of the Act vis-a-vis third parties from the use of the vehicle in a public place. What would happen if a motor vehicle is used in a public place, which is not covered by the mandatory insurance postulated under Section 146 of the Act. In fact, under Section 196, it is an offence punishable both with fine and imprisonment to drive a motor vehicle or cause or permit it to be driven in contravention of the provisions of Section 146 of the Act, that is to say, without an insurance policy. Here, it is the owner, who caused the vehicle to be placed in the hands of the independent contractor, the bailee, who is the mechanic, for repairs while it was not covered by an insurance policy. The mechanic would be presumed not to know of the fact. There is no evidence by the owner led to show that he had informed the mechanic that the vehicle was without a valid insurance cover as required under the Act. It is perhaps for this reason that the owner had asked the mechanic not to use the motor vehicle in his absence. That, however, cannot be a fact imputing knowledge to the mechanic about the vehicle being uninsured or altering his status as an independent contractor holding it under a contract of bailment.
49. It brooks no doubt that though the driving of an uninsured vehicle in a public place is absolutely prohibited by the Act and also constituted an offence punishable by law, if the owner in fact drives an uninsured vehicle in a public place or causes it to be driven through his servant or agent, injuring a third party, the owner would be liable to compensate the third party for the injury or loss sustained. However, when the vehicle is entrusted to an independent contractor, like a mechanic, for the purpose of service or repairs, it is held by the mechanic or the repairer under a contract of bailment. It is not held as a servant or an agent of the owner. It is well settled by consistent authorities that so long as the bailee, a mechanic or a repairer is holding a motor vehicle, the owner has no control over it.
50. In the considered opinion of this Court, therefore, even if the owner while entrusting a vehicle to an independent contractor, a bailee, like a garage owner or an independent mechanic or repairer, gives him certain instructions not to use the vehicle in a public place, those will not alter the status of the bailee into an agent or servant of the owner. And, therefore, for any injury or loss to a third party, arising out of the use of a motor vehicle in a public place by the mechanic or the repairer, while he holds a motor vehicle under a contract of bailment, the bailee would be liable in damages or compensation to the third party. It would not be the owner.
51. To the understanding of the Court, this is evident from the holding of the Supreme Court in Guru Govekar, where as already said, it was held that under the law of torts, the owner would not be vicariously liable for the injury to a third party caused by an independent contractor or bailee, like a repairer or mechanic, holding the vehicle under a contract or bailment. It is quite another matter that in Guru Govekar, their Lordships held the insurer liable under the statute, which provides for the liability of the insurer to a third party, independent of the fact whether the owner was using the vehicle or a bailee, to whom the owner had entrusted it for repairs etc. Thus, the principle in Guru Govekar would also support the liability of the independent contractor to a third party in a situation, where the vehicle is uninsured. In the considered opinion of this Court, the independent contractor, that is to say, the mechanic would be liable to compensate the claimant-respondent No.1, as directed by the Tribunal under the impugned award.
52. In the opinion of this Court, therefore, no case for interference with the impugned judgment and award is made out.
53. In the result, this appeal fails and is dismissed.
54. Costs easy.
Order Date :- 21.3.2023 Anoop